On 03/03/2017 RONALD E FOSTER JR filed a Personal Injury - Motor Vehicle lawsuit against ARTHUR RICHARD TRIMBLE JR. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are YOLANDA OROZCO, LAURA A. SEIGLE and AMY D. HOGUE. The case status is Other.
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
LAURA A. SEIGLE
AMY D. HOGUE
FOSTER RONALD E. III
BEST WEST CARRIER INC
FOSTER RONALD E. JR.
FOSTER RONALD E. III
FOSTER RONALD E. JR.
BEST WEST CARRIER INC
DOES 1 TO 20
TRIMBLE ARTHUR RICHARD JR.
DLR EXPRESS INC. DIOE 1
DLR EXPRESS INC. DOE 1
KING NOLAN F.
ANDERSON RICHARD G. ESQ.
KING NOLAN F.
SAYLOR JEFFERSON ESQ.
SAYLOR JEFFERSON G. ESQ.
SHAFFERY JOHN ESQ.
SHAFFERY JOHN HUBERT ESQ.
BENKNER JASON ARTHUR
DIEGUEZ MARCELO ADRIAN
11/18/2019: Declaration - DECLARATION DECLARATION OF EUGENIA FOSTER
11/18/2019: Brief - BRIEF BRIEF IN SUPPORT OF APPLICATION FOR DEFAULT JUDGMENT
12/5/2019: Motion to Set Aside/Vacate Dismissal
1/6/2020: Supplemental Declaration - SUPPLEMENTAL DECLARATION OF JEFFERSON SAYLOR RE DEFAULT JUDGMENT
1/23/2020: Declaration - DECLARATION DECLARATION OF FATIMA DE LA ROSA IN SUPPORT OF DEFENDANT'S MOTION
1/31/2020: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE HEARING DATE;)
9/12/2019: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL FOR FAILURE TO ENTER DEFAUL...)
6/3/2019: Minute Order - MINUTE ORDER (TRIAL SETTING CONFERENCE JUDGMENT AS TO REM DEFT. DLREXPRESS,...)
3/7/2019: Request for Entry of Default / Judgment
3/5/2019: Minute Order - Minute Order (Non-Jury Trial; Final Status Conference)
2/19/2019: Special Verdict
2/15/2019: Motion in Limine - Motion in Limine Motion in Limine No. 5 to Exclude Plaintiff from Introducing Witnesses, Evidence or Contentions Related to Mental or Emotional Injury
2/19/2019: Minute Order - Minute Order (Final Status Conference)
1/14/2019: Minute Order - Minute Order (Hearing on Ex Parte Application For an order compelling plain...)
11/15/2018: Stipulation and Order - Stipulation and Order to Continue Trial and Expert Depositions
9/20/2018: NOTICE OF MOTION AND MOTION TO BE RELIEVED AS COUNSEL-CIVIL
9/20/2018: DECLARATION IN SUPPORT OF ATTORNEY'S MOTION TO BE RELIEVED AS COUNSEL-CIVIL
3/3/2017: COMPLAINT FOR DAMAGES
Docketat 08:30 AM in Department 4B; Order to Show Cause Re: Dismissal - Not Held - Vacated by CourtRead MoreRead Less
Docketat 1:30 PM in Department 27, Laura A. Seigle, Presiding; Hearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) - HeldRead MoreRead Less
Docketat 1:30 PM in Department 27, Laura A. Seigle, Presiding; Hearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) - Not Held - Vacated by CourtRead MoreRead Less
DocketCertificate of Mailing for ((Hearing on Motion to Set Aside/Vacate Default and Default Jud...) of 02/26/2020); Filed by ClerkRead MoreRead Less
DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by Best West Carrier, Inc (Plaintiff); Ronald E. Foster, III (Plaintiff); Ronald E. Foster, Jr. (Plaintiff)Read MoreRead Less
DocketMinute Order ( (Hearing on Motion to Set Aside/Vacate Default and Default Jud...)); Filed by ClerkRead MoreRead Less
DocketReply (Plaintiff Sur Reply); Filed by Ronald E. Foster, III (Plaintiff)Read MoreRead Less
Docketat 1:30 PM in Department 27, Laura A. Seigle, Presiding; Hearing on Motion to Set Aside/Vacate Default and Default Judgment (CCP 473.5) - Not Held - Advanced and Continued - by CourtRead MoreRead Less
DocketReply (Defendant DLR Express Reply to Plaintiff's Opposition); Filed by DLR Express, Inc. (Doe 1) (Defendant)Read MoreRead Less
DocketDeclaration (of Martha Lopez); Filed by Ronald E. Foster, III (Plaintiff)Read MoreRead Less
DocketOrder - Dismissal; Filed by CourtRead MoreRead Less
DocketNOTICE OF CHANGE OF FIRM ADDRESSRead MoreRead Less
DocketNotice of Change of Firm Name; Filed by Arthur Richard Trimble, Jr. (Defendant)Read MoreRead Less
DocketAnswer; Filed by Arthur Richard Trimble, Jr. (Defendant)Read MoreRead Less
DocketANSWER BY DEFENDANT ARTHUR RICHARD TRIMBLE, JR. TO PLAINITFFS' UNVERIFIED COMPLAINTRead MoreRead Less
DocketProof-Service/Summons; Filed by Ronald E. Foster, III (Plaintiff); Ronald E. Foster, Jr. (Plaintiff)Read MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketComplaint; Filed by Ronald E. Foster, III (Plaintiff); Ronald E. Foster, Jr. (Plaintiff)Read MoreRead Less
DocketCOMPLAINT FOR DAMAGESRead MoreRead Less
DocketSUMMONSRead MoreRead Less
Case Number: BC652708 Hearing Date: February 26, 2020 Dept: 27
[TENTATIVE] ORDER RE: DEFENDANT DLR EXPRESS, INC.’S MOTION TO VACATE AND SET ASIDE DEFAULT; QUASH SERVICE OF SUMMONS
On March 3, 2017, plaintiff Ronald E. Foster, Jr. (“Plaintiff”) filed this action against Defendant Arthur Richard Trimble Jr. (“Trimble”) for injuries sustained in a semi-truck vs. semi-truck collision. On November 16, 2018, Plaintiff named DLR Express, Inc. (“DLR”) as Doe 1. Default was entered as to DLR on March 7, 2019. On July 23, 2019, Plaintiff dismissed Trimble. On January 7, 2020, Plaintiff obtained a default judgment against DLR. On January 23, 2020, DLR filed this motion to set aside default under Code of Civil Procedure sections 473.5 and 473(d) on grounds that it lacked actual notice and because it was not properly served.
DLR argues the default judgment is void because DLR was not properly served with the summons and complaint. “The court . . . may, on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).) “‘A default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.’ Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1200, citations omitted.) Relief on this basis generally requires consideration of extrinsic evidence. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180.)
DLR contends service was improper because it was not served at its office located at 13058 S. Bon View, Ontario, California 91761. The proof of service of summons shows that the summons, complaint, and other papers were served via substitute service on Fatima Del Carmen De La Rosa as agent for service for DLR. The proof of service states that on January 24, 2019, the documents were left with Martha Lopez as the person in charge at 14050 Cherry Avenue, Suite R-15 in Fontana, California and a copy was mailed there on January 25, 2019 at 2:45 p.m. DLR argues that this Fontana address is not its “office or usual place of business,” and that its physical address was not unknown because the information is readily available on the internet or from the other defendant Trimble.
Code of Civil Procedure section 415.20, subdivision (a) provides a procedure for serving a corporation: “In lieu of personal delivery of a copy of the summons and complaint to the person to be served . . ., a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and complaint . . . to the person to be served at the place where a copy of the summons and complaint were left.”
DLR argues Plaintiff did not comply with section 415.20, subdivision (a) because the proof of service states “physical address unknown” even though Plaintiff knew DLR’s physical address in Ontario, and even though the Ontario address can be found on the Internet. Therefore, DLR argues, Plaintiff should have left a copy of the summons and complaint at the Ontario address.
The president of DLR states in her declaration that DLR Freight, Inc. and DLR shared the Ontario office, and the other defendant Trimble regularly visited her at the Ontario office. She states the Fontana address is a commercial mail receiving agency where DLR receives mail. She states she does not know a Martha Lopez, and the commercial mail receiving agency did not tell her about any legal documents and did not give her the complaint and summons. She did receive some legal documents in the mail at the Fontana address in 2019 but says she did not understand what they were.
Plaintiff argues DLR has always had the Fontana address as its address for service. Plaintiff argues that the only address he knew for DLR was the Fontana address, and he had no obligation to ask Trimble, who he was suing, for DLR’s address. Plaintiff’s counsel attaches to his declaration as Exhibit 1 Secretary of State forms for DLR. The first form is for Zapata Transports Group, Inc., which according to Exhibit 7, changed its name to DLR Express, Inc. The form in Exhibit 1 shows De La Rosa filling the role as officer, director, and agent for service of process for DLR. The form lists the Fontana address as the address of the principal executive officer, the officers, directors, and agent of service of process. In addition Exhibit 4 to the declaration contains a screen shot of the Secretary of State’s website showing DLR’s agent for service of process is De La Rosa, with the Fontana address listed as the address for service of process, the entity address, and the mailing address. In her declaration, Martha Lopez confirms she put the complaint and summons in DLR’s mailbox and DLR picked them up.
DLR has no evidence that Plaintiff knew the Ontario address was its physical address. DLR’s Secretary of State filings list the Fontana address as its physical address, mailing address, and address for its agent for service. None lists the Ontario address. Therefore, it was reasonable for Plaintiff to conclude that the Fontana address was DLR’s address for all purposes as well as the address for its agent for service. Plaintiff left the summons and complaint at the Fontana address during usual office hours and with the person apparently in charge, and then mailed the documents to that address, thereby complying with section 415.20, subdivision (a), both for service at the agent’s physical address and the agent’s mailing address.
Lack of Actual Notice
DLR also argues it lacked actual notice of the complaint and summons. Where a service of summons has not resulted in actual notice to a party in time to defend the action, the party may move the court to set aside default and default judgment. (Code Civ. Proc., § 473.5, subd. (a).) The motion must be made no later than two years after entry of default or 180 days after service of a written notice that default or default judgment has been entered. (Ibid.) The party must act with diligence upon learning of the judgment. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180; Code Civ. Proc., § 473.5, subd. (a).) The party seeking to set aside must also submit a declaration that lack of actual notice was not caused by his or her avoidance of service or inexcusable neglect and a copy of the proposed answer, motion, or other pleading proposed to be filed in the action. (Code Civ. Proc., § 473.5, subd. (b).)
Fatima De La Rosa states she did not understand DLR was involved in this action until January 2020. She acknowledges receiving legal documents sometime in 2019 but thought the documents were mailed to DLR as a mistake. She then received a large packet of legal documents by mail in November or December 2019 and sought legal counsel in early 2020. The Court docket also shows Plaintiff mailed the request for entry of default to the Fontana address on March 7, 2019. De La Rosa states she was depressed in 2019 and had a cousin and uncle die that year.
Based on these facts, the Court cannot conclude that DLR lacked actual notice in time to defend the action. De La Rosa received legal documents in 2019, saw that they pertained to DLR, and chose not to follow-up.
Based on the foregoing, DLR’s motion is DENIED.
Moving party to give notice.
Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative.